New York State Court of Claims

New York State Court of Claims

DIFRISCO v. THE CITY UNIVERSITY OF NEW YORK, #2007-016-007, Claim No. 101410


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Corpina, Piergrossi, Overzat & Klar, LLPby: Peter K. Overzat, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Diana Dykes, AAG and Karen G. Leslie, AAG
Third-party defendant’s attorney:

Signature date:
February 21, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of JoAnn DiFrisco’s claim that she was caused to trip and fall by a hole in the pavement at Lehman College in Bronx County. On August 24, 1999, Ms. DiFrisco was taking her teenage son, Richard, to register as a freshman at Lehman, a senior college of the City University of New York.
As part of this first day at college, her son needed to go to the campus bookstore. The store’s sole entrance/exit was one set of double doors, but Ms. DiFrisco recalled that because of construction, only one door was functioning for foot traffic in both directions.
According to claimant, she and her son went into the store, purchased a book or notebook for Richard and then the two left the store; it was about 2 to 2:30 p.m. Ms. DiFrisco testified that she was wearing flat, “closed” shoes with rubber soles and was carrying her pocketbook. She thought her son was carrying “the books.” Richard was walking a step or two in front of his mother. Claimant explained:
I walked out the door. I took about maybe three steps, and I was on the floor . . . Well, afterwards I realized that I had fallen over in a hole . . . My foot went in a hole . . . and I fell backwards. . .
Ms. DiFrisco stated that she was looking straight ahead and did not see the hole until she tried to get back on her feet after her fall. She described the hole as about the size of a dinner plate (“ten or twelve inches around”) and “maybe six to eight inches deep.” It was located in an asphalt walkway or paved area in front of the bookstore, and within several feet of the entrance (see the photograph in evidence that is claimant’s exhibit 1). Claimant testified that the defect can be seen in the three photographs in evidence, which were taken a few days afterwards (cl exhs 1 -3).
Ms. DiFrisco added that when she fell, the hole did have some “dirt and leaves” in it, but not as much as is shown in the photographs. Richard DiFrisco described the hole as about one and a half feet by two feet with a depth of six inches - - from the photos, this proportion of depth to surface area appears more accurate than claimant’s estimate.
The only witnesses who took the stand at trial were JoAnn DiFrisco and Richard DiFrisco. In addition, the February 3, 2005 deposition of administrative superintendent Raymundo Pegollo was admitted into evidence (cl exh 4). The only other evidentiary exhibits were the aforementioned three photographs of the vicinity of the bookstore entrance, as well as the August 18, 2004 deposition of Richard DiFrisco, which is defendant’s exhibit A.
The defendant, City University of New York, like any property owner, has a duty to maintain its premises in a reasonably safe manner. Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). Such standard does not make City University an insurer - - that an accident occurs does not necessarily implicate negligence. Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3th Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001).
To recover, claimant must prove that what caused her to fall was a dangerous condition, and that defendant (assuming it did not create it) had notice of the defect or condition. Notice can be actual or constructive. Constructive notice will obtain if it can be shown that the defect was visible and apparent and had existed for a sufficient period of time prior to the accident to have been discovered and remedied. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Giuffrida v Metro North Commuter Railroad Company, 279 AD2d 403, 720 NYS2d 41 (1st Dept 2001).
As of August of 1999, Mr. Pegollo was an administrative superintendent in charge of the custodians who cleaned and maintained the interior of the buildings on campus. By the time of trial, his duties had expanded to include authority over the superintendent who was in charge of the exterior areas, including the walkways. In his deposition testimony, Pegollo stated that he did not recall ever seeing the hole, although he did say that back in 1999, he would pass through the area every day. When shown one of the photographs of the hole and told that it was six to eight inches deep, Pegollo responded that he considered such to be a tripping hazard, and indicated that the depression warranted repair. Supported by the photos, I credit the uncontradicted description of the dimensions of the hole by claimant and her son; in my view, it was at least six inches deep - - this was a dangerous condition.

There was no evidence of any actual notice; there were no prior complaints or accidents. As for constructive notice, this was a deep hole on a paved walkway close to the entrance of a building that served a basic function -- Richard found a need for it on his first day at college. What caused Ms. DiFrisco’s fall was not a transitory condition like snow or spilt coffee on a cafeteria floor. Claimant indicated there were leaves and other debris in the hole, but not enough to cover it. In any event, given, to this trier of fact, the extended period of time such defect must have been present, it would or should have been noticed. Mr. Pegollo explained that the repair of the hole would have been effected either verbally or with a written work order and would be performed in-house by employees of Lehman College. Pegollo testified that in 1999 the superintendent for the exterior area, one Matthew Conti, had a crew of seven workers.
Claimant’s essential narrative survives unchallenged by defendant, although the case was not seamless - - JoAnn DiFrisco did not report her fall and there was no accident report. Richard DiFrisco testified that when the photos were taken, some were taken with objects like keys placed in the hole to show its dimensions, but these photographs were never presented by claimant. There were some inconsistencies, for example, on the direction that claimant fell and on the size of the bag she was carrying.
The hole in the pavement in front of the bookstore was apparent with the ordinary use of one’s senses; it was thus “open and obvious.” While there is no duty to warn of a dangerous condition that is open and obvious (Tagle v Jakob, 97 NY2d 165, 737 NYS2d 331 (2001), the broader duty to maintain a safe condition remains: an open and obvious condition does not defeat an action against the premises owner, but is relevant to the issue of claimant’s comparative negligence. See, for example, Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69, 773 NYS2d 38 (1st Dept 2004), and Cupo v Karfunkel, 1 AD3d 48, 767 NYS2d 40 (2nd Dept 2003).
On the day in question, it was sunny. Ms. DiFrisco had just entered through the same entrance, although perhaps from a different angle. Claimant was very familiar with the college grounds and the vicinity of the accident:
Q. Prior to August 24th, 1999 had you been on the campus of Lehman College before?

A. Yes. Many, many times.

Q. Under what circumstances?

A. I had taken my bachelor’s and my master’s degree there. I was doing my master’s at the time.

Q. And prior to the date of your incident here had you been to the bookstore?

A. Yes. Many, many times.

Q. And prior to . . . August 24th, had you entered or exited the same door that you used on the date of the accident?

A. Yes.
In sum, I find that defendant was negligent in its failure to discover and/or repair the pavement hole near the bookstore entrance and that such was the proximate cause of JoAnn DiFrisco’s trip and fall on August 24, 1999. Further, in view of the above, I find that claimant must share in the fault; she and defendant are each 50% liable. A trial on damages will be scheduled by the Court.

February 21, 2007
New York, New York

Judge of the Court of Claims

[1]. Whether a dangerous or defective condition exists is a function of the particular facts and circumstances - - there is no per se rule that a defect must be of a certain height or depth in order to be actionable. Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997).